Recently, an Eastern District of Michigan court entered summary judgment in favor of a defendant upon finding that it had neither transmitted nor caused the transmission of the fax at issue. In Garner Properties & Management, LLC v. Marblecast of Michigan, Inc., the plaintiff alleged that it had received an unsolicited fax that referenced the products of two companies: Marblecast of Michigan and American Woodmark. The plaintiff sued both companies in a putative class action. American Woodmark eventually moved for summary judgment and argued that the plaintiff had failed to offer evidence from which a reasonable juror could conclude that it had “sent” the fax at issue. See 47 U.S.C. § 227(b)(1)(C) (“It shall be unlawful for any . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless. . . .”) (emphasis added). In opposition, the plaintiff argued that American Woodmark was strictly liable as a sender under the TCPA because the fax had referenced its products. Continue reading »

The Northern District of Illinois recently issued an order that denied defendants an opportunity to present “individualized challenges” to the members of a certified class in a TCPA fax case. The court determined that the defendants waived their right to challenge whether certain members of the class were entitled to recover because defendants did not assert their objections at the time the court approved the initial class notice. Continue reading »

We have previously written—both in this blog and in articles—about district courts dismissing TCPA claims after finding that the alleged injuries were not “traceable to” (i.e., caused by) the purported TCPA violations. Last week, the Eighth Circuit in St. Louis Heart Center, Inc. v. Nomax, Inc., — F.3d —, 2018 WL 3719694 (8th Cir. Aug. 6, 2018), held that plaintiff and a putative class lacked Article III standing to allege that fax advertisements did not contain a proper opt-out notice. Defendant had moved to dismiss the case for lack of Article III standing after removing the case from state court and the district court dismissed the claim because the alleged injuries were not traceable to the purported TCPA violation. Continue reading »

Prior to the Supreme Court’s denial of petition for certiorari filed by the class action plaintiffs in Bais Yaakov of Spring Valley v. FCC (an appeal we have been monitoring since the briefing in the D.C. Circuit up through the recent cert petition briefing), TCPA Blog contributor Justin Kay spoke with Legal NewsLine about the petition and the Supreme Court’s likely response. Continue reading »

The Supreme Court today denied the petition for certiorari filed by the class action plaintiffs in Bais Yaakov of Spring Valley v. FCC, thus leaving in place the D.C. Circuit’s ruling that “although the [Telephone Consumer Protection Act] requires an opt-out notice on unsolicited fax advertisements, the Act does not require a similar opt-out notice on solicited fax advertisements . . . . [nor does it] grant the FCC authority to require opt-out notices on solicited fax advertisements.” 852 F.3d 1078, 1082 (D.C. Cir. 2017). Our summary of the briefing on the petition is available here.

As we’ve discussed previously, the D.C. Circuit’s ruling (binding nationwide pursuant to the Hobbs Act) makes it much tougher for plaintiffs in TCPA fax suits to certify a class. The plaintiffs’ bar has typically sought to certify classes based on violations of the opt-out notice requirement for solicited faxes, because a class defined in such a way side-stepped the inherently individualized issue of whether the fax was solicited or not. With the opt-out notice requirement for solicited faxes eliminated, plaintiffs’ attorneys have a much tougher challenge. Indeed, in Alpha Tech Pet, Inc. v. Lagasse, LLC, No. 16 C 513, 2017 U.S. Dist. LEXIS 182499 (N.D. Ill. Nov. 3, 2017), a district court relying on the D.C. Circuit’s decision found that individualized issues of consent precluded certification of a class of fax recipients where certification could not be premised on whether the faxes included an opt-out notice. The plaintiff in Alpha Tech has appealed that decision, arguing (among other things) that the D.C. Circuit’s decision is not binding in the Seventh Circuit. Given the significance of this issue for the plaintiff’s bar, we can expect to continue to see collateral challenges like this to the repeal of the FCC’s solicited fax rule notwithstanding that the D.C. Circuit’s decision in Bais Yaakov is now final.

On January 30, 2018, briefing closed on the petition for certiorari filed in the Supreme Court by the class action plaintiffs in Bais Yaakov of Spring Valley v. FCC. The class action plaintiffs are seeking review of the D.C. Circuit’s March 2017 decision (discussed at length here, here, here, and here) holding that the FCC exceeded its statutory authority when it promulgated regulations in 2006 requiring that a fax advertisement sent with the prior express consent of the recipient include an opt-out notice because “although the Act requires an opt-out notice on unsolicited fax advertisements, the Act does not require a similar opt-out notice on solicited fax advertisements . . . . [nor does it] grant the FCC authority to require opt-out notices on solicited fax advertisements.” Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1082 (D.C. Cir. 2017). Continue reading »

Following the D.C. Circuit’s decision in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. Mar. 31, 2017), we explained on this blog and elsewhere that the issue of whether a fax advertisement is solicited or not would come back into play in many cases and make it much harder for the plaintiffs’ bar to certify a class of recipients. And that is precisely what occurred in a recent decision from the Northern District of Illinois in Alpha Tech Pet, Inc. v. LaGasse, LLC, No. 16-cv-513 (N.D. Ill. Nov. 3, 2017): the court granted defendants’ motion to deny class certification. In the process, the court also slammed the door on several arguments proffered by plaintiffs’ counsel in an effort to evade the impact of Bais Yaakov.

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